CHILD SUPPORT LEGISLATION AMENDMENT BILL 2000

(Circulated by authority of The Hon. Larry Anthony MP, Minister for
Community Services)

CHILD SUPPORT LEGISLATION AMENDMENT
BILL 2000

OUTLINE AND FINANCIAL IMPACT STATEMENT

This Bill amends
Australian domestic law in order to enable Australia to fulfil its
international maintenance obligations.

The legislation
involved is the Child Support (Registration and Collection)
Act 1988 , the Child Support (Assessment) Act
1989 and the Family Law Act 1975 .

Schedule 1—Amendments

A regulation making
power is inserted into the Child Support (Registration and
Collection) Act 1988 , the Child Support (Assessment)
Act 1989 and the Family Law Act 1975 to allow
regulations to be made prescribing, in relation to countries with
which Australia has maintenance enforcement arrangements, all
matters relevant to the recognition and enforcement of child
support and spousal maintenance liabilities.

Date of
Effect:
Royal Assent

Financial
Impact: Negligible

CHILD SUPPORT LEGISLATION AMENDMENT BILL 2000

NOTES ON CLAUSES

Clause
1—Short Title

Clause 1 of the
Child Support Legislation Amendment Bill 2000 sets
out how the amending Act is to be cited.

Clause
2—Commencement

Clause 2 specifies
when the various clauses and Schedules of the amending Act are to
commence.

Clause
3—Schedule(s)

Clause 3 says that
each Act that is specified in a Schedule to the Child Support
Legislation Amendment Bill 2000 is amended or repealed as
set out in the Schedules.

·
Acts amended by this Bill are:

the
Child Support (Registration and Collection) Act
1988 ;

the
Child Support (Assessment) Act 1989 ; and

the
Family Law Act 1975 .

SCHEDULE 1 —AMENDMENTS

1. Summary of proposed changes

The Child
Support (Registration and Collection) Act 1988 , the
Child Support (Assessment) Act 1989 and the
Family Law Act 1975 are amended to allow regulations
to be made which prescribe, in respect of countries with which
Australia has entered into arrangements, all matters relevant to
the recognition and enforcement of child support and spousal
maintenance liabilities.

2. Background

Australia currently
has arrangements with a variety of countries in respect of the
recognition and enforcement of maintenance liabilities.
However, in relation to certain issues, those arrangements are no
longer appropriate. For example, Australia’s existing
arrangements with New Zealand and the United States were devised on
the basis that all liabilities were in the form of orders made, or
agreements registered by, a court. They are unsuited to the
current situation in those countries as court ordered maintenance
is gradually being replaced by administrative assessments of child
support issued by Child Support Agencies. Further, other
international arrangements are of limited value to the recipients
of child support and spousal maintenance as they are largely
dependent on slow and cumbersome procedures for the initiation and
pursuit of proceedings in foreign courts to obtain orders for
maintenance.

In November 1994,
the Joint Select Committee on Certain Family Law Issues reported on
the operation and effectiveness of the Child Support Scheme and
made a number of recommendations in relation to the international
enforcement of child support liabilities.

The changes to the legislation,
in combination with the Regulations, will allow Australia to become
a party to the following three international agreements:

(i) the agreement
with New Zealand on child support and spousal maintenance;

(ii) the Hague Convention
on the Recognition and Enforcement of Maintenance Liabilities;
and

(iii) a new agreement with the
USA on the enforcement of family maintenance (support)
obligations.

These agreements
will replace, or complement, existing arrangements for the
enforcement of child support and spousal maintenance
liabilities. They oblige each country to provide in its laws
for the recognition and enforcement of such liabilities.

The proposed amendments provide for
regulations to be made which prescribe for matters relevant to the
recognition and enforcement of child support and spousal
maintenance liabilities. The following are some of the
matters for which the regulations may prescribe:

-
the enforcement of administrative assessments (as well as the
continued enforcement of court orders and registered
agreements);

-
allowing the Child Support Agency to make an administrative
assessment even though the payer is not resident in Australia and
does not have an Australian taxable income;

-
in the case of New Zealand, providing that the creation, and
variation, of liabilities will only be able to be undertaken in the
country where the payee is resident;

-
obliging each country to assist in locating payers, serving notices
and providing advice so that maintenance liabilities can be
enforced;

-
allowing the Child Support Agency to collect overseas maintenance
liabilities which have not first been registered in an Australian
Court under the Family Law Act 1975 ;

-
requiring reciprocity in legislative presumptions of parentage.

3. Explanation of the changes

Item 1
amends section 4 of the Child Support (Assessment) Act
1989 (the Assessment Act) which is concerned with the
objects of that Act. The effect of the amendment is that a
particular object of the Assessment Act is to ensure that Australia
is able to give effect to its international maintenance obligations
arising under international agreements or arrangements.

Item 2 inserts new section 163B into
the Assessment Act.

In circumstances
where Australia has entered an agreement with another country
concerning child support or spousal maintenance, new paragraph
163B(1)(a) provides for regulations to be made which prescribe all
matters relevant to Australia’s obligations under that
agreement.

The effect of new
subparagraph 163B(1)(b)(i) is that regulations can be made in
relation to maintenance obligations where the person who is
claiming maintenance (or on whose behalf maintenance is claimed) is
in a ‘reciprocating jurisdiction’. The term
reciprocating jurisdiction is defined as a foreign country, or part
of a foreign country, which is prescribed in the regulations.
The regulations will prescribe a list of countries with which
Australia has maintenance arrangements. This list will be
varied from time to time as required.

The effect of new
subparagraph 163B(1)(b)(ii) is that regulations can be made in
relation to maintenance obligations where the person from whom
maintenance is being claimed is in a ‘reciprocating
jurisdiction’.

Australia's international maintenance
arrangements provide for the enforcement of maintenance obligations
owed by parents to children and maintenance obligations owed by one
party to the other party to a marriage. The amendments refer
to maintenance obligations arising from family relationships,
parentage or marriage in order to avoid any implication that
international arrangements can be implemented only in respect of
children who are the biological offspring of a person (and not, for
example, step children to whom a parent may have an obligation) or
in respect of a spouse (and not a spouse to a void marriage to whom
the other spouse may have an obligation).

Implementation of Australia's
international maintenance arrangements will require action by both
the Australian Child Support Agency and by Australian courts. For
example, lump sum maintenance orders made by overseas courts will
continue to be enforced by Australian courts. In addition,
proceedings may need to be taken in Australian courts to establish
maintenance orders for the benefit of a child in a reciprocating
jurisdiction who, by reason of full time education or physical
disability, needs support from a parent in Australia. The
Bill provides that in implementing Australia's international
maintenance arrangements, the regulations may confer jurisdiction
on courts. New subsection 163B(2) provides for
regulations to be made which confer jurisdiction on a federal court
or a Court of a Territory. The amendments also provide for
regulations that invest a court of a State with federal
jurisdiction.

Currently, the
Assessment Act does not provide for some matters that are crucial
to Australia’s international maintenance obligations.
For example, in working out the amount of a child support
liability, the Assessment Act is concerned with the taxable income
of the parties as determined under Australian taxation
legislation . In the situations sought to be covered by
these amendments, it will always be the case that one of the
parties will be resident in a reciprocating jurisdiction and, while
he or she may have income according to the laws of that
jurisdiction, there may be no taxable income according to
Australian taxation laws. In meeting Australia’s
international maintenance obligations, a wider range of income
sources may be considered in determining the amount of a child
support liability.

New subsection
163B(3) provides that where regulations are made, they may be
inconsistent with the provisions of the Assessment Act and, to the
extent of any inconsistency, would prevail over the provisions of
the Assessment Act. The purpose of this approach is to allow
the regulations to vary the operation of the Assessment Act where
the existing provisions are not appropriate for the purposes of
meeting Australia’s international maintenance
obligations.

New subsection
163B(4) inserts definitions for new terms, “international
agreement” and “reciprocating jurisdiction”, into
the Assessment Act.

Item 3
amends section 3 of the Child Support (Registration and
Collection) Act 1988 (the Registration and Collection Act)
which is concerned with the objects of that Act. The effect
of the amendment is to make it an object of the Registration and
Collection Act that Australia is able to give effect to its
international maintenance obligations arising under international
agreements or arrangements.

Items 4 and 5 respectively make
the same amendments to the Registration and Collection Act and the
Family Law Act 1975 as Item 2 makes to the Assessment
Act.